We are often asked by directors of South Carolina homeowners associations (HOAs) whether their board of directors (“board”) meetings are legally required to be “open” to attendance by the non-director members of the HOA. It is not surprising that this would be a frequently asked question, as many other states have different provisions on this issue, and there are even some South Carolina statutory provisions that might understandably create confusion. This article will hopefully help to clear up that confusion but also serve as a reminder for HOA boards to check their own community’s governing documents for any provisions as to open board meetings. For the avoidance of confusion, it is important to note that this article concerns HOA board meetings, not HOA membership meetings.
In short, South Carolina HOA board meetings are not required to be open to the membership unless the community’s governing documents say so.
There is no applicable South Carolina statute that requires HOA boards to open their meetings to members or other non-directors. The same cannot be said for various other states. There are a number of states with statutes requiring HOA boards to allow members to attend their board meetings, but South Carolina is not one of them. That said, whether it be from new HOA members moving from states that do have such statutes, or perhaps from internet search engines and/or A.I. incorrectly relying on inapplicable statutes from other states, it is no surprise that some HOA members may mistakenly believe that the law requires HOA board meetings to be open to members. We understand HOA boards also often receive claims that the board must hold open board meetings due to South Carolina’s Freedom of Information Act (FOIA).[1] FOIA does require, with certain exceptions, every meeting of “all public bodies” to be open to the public.[2] However, the typical South Carolina HOA is not a “public body” as defined by FOIA, and not subject to this requirement.[3]
Not only is South Carolina statutory authority devoid of requirements for open HOA board meetings, but a number of provisions of South Carolina’s Nonprofit Corporation Act (the “Act”), applicable to the overwhelming majority of South Carolina HOAs, further support the absence of an open board meeting requirement.[4] For example, the Act generally allows, unless the community’s governing documents provide otherwise, for regular board meetings to be held without notice.[5] Moreover, the Act even allows for boards to take actions entirely without meetings under certain conditions if not otherwise prohibited by the community’s governing documents.[6]
All that being said, it is very important for HOA boards to review their HOA’s specific governing documents.
While South Carolina law does not in itself require board meetings to be open to the membership, the HOA’s specific governing documents may still impose such a requirement, and South Carolina law expects an HOA board to govern their HOA in accordance with their governing documents. While HOA governing documents requiring open board meetings requirement might be a slight minority, they are certainly not unheard of.
Nevertheless, some HOA boards in South Carolina choose to open their meetings to members even when their governing documents do not require the meetings to be open. Unless their governing documents provide that the board meetings must be closed, which would be a rare provision, the board is within their rights to allow their meetings to be open to membership. Some boards and communities find that open board meetings help assure members of transparency and accountability, while other communities may find that open board meetings create logistical and productivity issues. Ultimately, in South Carolina, unless the governing documents affirmatively require board meetings to be open, the decision is left to the discretion of the board.
This article is not intended to be an exhaustive discussion of applicable law regarding HOA board meetings nor any guarantee of the outcome of any litigation regarding the same. Our attorneys at McCabe, Trotter & Beverly, P.C. are experienced and well-equipped to answer questions you may have regarding this topic. Please contact us at 803–724–5000 for further information.
Christian Saville
McCabe, Trotter & Beverly, P.C. blogs and other content are for educational and informational purposes only. This is not legal advice and does not create an attorney/client relationship between McCabe, Trotter & Beverly, P.C. and readers. Readers should consult an attorney to understand how this information relates to their personal situation and circumstances. You should not use McCabe, Trotter & Beverly, P.C. blogs or content as a substitute for legal advice from a licensed attorney.
[1] S.C. Code § 30-4-10, et seq.
[2] S.C. Code § 30-4-60 (emphasis added).
[3]See S.C. Code § 30-4-20(a) (defining “[p]ublic body” as any department of the State, a majority of directors or their representatives of departments within the executive branch of state government as outlined in Section 1-30-10, any state board, commission, agency, and authority, any public or governmental body or political subdivision of the State, including counties, municipalities, townships, school districts, and special purpose districts, or any organization, corporation, or agency supported in whole or in part by public funds or expending public funds, including committees, subcommittees, advisory committees, and the like of any such body by whatever name known, and includes any quasi-governmental body of the State and its political subdivisions, including, without limitation, bodies such as the South Carolina Public Service Authority and the South Carolina State Ports Authority…”)
[4] S.C. Code § 33-31-101, et seq.
[5] S.C. Code § 33-31-822(a).
[6] S.C. Code § 33-31-821.